Xiros Limited: General Terms and Conditions for the Sale of Goods

In these Conditions, the following definitions apply:
“Business Day” means a day other than a Saturday, Sunday or public holiday in England.
“Buyer” means the company or other commercial entity who buys the Goods from Xiros.
“Conditions” the terms and conditions set out in this document together with any special terms agreed in writing between the Buyer and Xiros.
“Confidential Information” means information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, clients, customers, products, affairs and finances of Xiros for the time being confidential to Xiros and trade secrets including technical data and know-how relating to the business of Xiros  or any of its suppliers, clients, customers, agents, distributors, shareholders or management, whether or not such information (if in anything other than oral form) is marked confidential.
“Contract” means the contract for the supply of Goods by Xiros to the Buyer in accordance with these Conditions.
“Delivery” has the meaning given in clause 6.1 and Delivered shall be construed accordingly.
“Delivery Location” means the location set out in the Order or such other location as the parties may agree.
“Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or if it could have been foreseen, was unavoidable, including acts of God, war, riot, civil commotion, compliance with a law or governmental order, rule, regulation or direction, fire, flood, storm, strike or other industrial action (including without limitation strike or other industrial action by the employees of the party claiming the benefit), failure by any statutory undertaking, utility company, local authority, internet access provider or similar body to provide services, any failure, shortage or significant price increase of power, fuel, raw material, component or transport.
“Goods” means the goods or materials supplied or sold by Xiros to the Buyer as specified in the Order Acknowledgment.
“Incoterms” means Incoterms 2010 as published by the International Chamber of Commerce in 2010.
“Insolvency Event” a party (i) enters liquidation; (ii) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; or (iii) proposes to make any arrangement with its creditors.
“Intellectual Property Rights” means patents, rights to inventions, trademarks, designs, applications for any of the foregoing and the right to apply for any of the foregoing in any part of the world, confidential information, business names, brand names, copyright and rights in the nature of copyright and get up, know how, domain names, inventions, and database rights and like rights in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future wherever situated in the world.
“Order” means the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form or the Buyer’s written acceptance of Xiros’ quotation.
“Order Acknowledgment” means the document entitled “order acknowledgment” or with a similar title in any such case as generated by Xiros and sent by post, fax or email by Xiros to the Buyer.
“Price” has the meaning given to it in clause 3.1.
“Specification” means the relevant specification and indications for use for the Goods contained in one or more of the instructions for use, price list and surgical manuals which are published from time to time by Xiros or available on Xiros’ website.
“Xiros” means Xiros Limited (registered in England and Wales under company number 01664824) whose registered office is at Springfield House, Whitehouse Lane, Leeds, LS19 7UE.
1.1     Reference to a statute or any statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.
1.2     In these Conditions and in the Specification: (i) the headings are for convenience only and shall not affect the interpretation of these Conditions or the Specification; (ii) the use of the plural shall include the singular and the use of the singular shall include the plural; and (iii) references to the masculine, feminine or neuter genders shall include each and every gender.
1.3     Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.      Basis of contract
2.1    These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2     No Contract shall take effect unless and until an Order submitted by the Buyer is accepted by Xiros in an Order Acknowledgement. All Orders accepted by Xiros shall be governed by these Conditions. The Buyer must ensure that the terms of the Order submitted by the Buyer are complete and accurate.
2.3     A quotation for the Goods given by Xiros shall not constitute an offer. A quotation shall only be valid for a period of twenty (20) Business Days from its date of issue.
2.4     Acceptance of Delivery of the Goods will be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
3.      Price and payment
3.1    The price of the Goods will be that stated in the Order Acknowledgment (the “Price”). The price is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced additionally to the Buyer. Subject to clause 6, Delivery charges shall be at Xiros’ standard rates (available upon request) unless otherwise agreed between the parties.
3.2     Save as expressly stated otherwise by Xiros in writing, prices are quoted by Xiros exclusive of value added tax (VAT) and any other sales tax, which Xiros shall add to the Price (and which the Buyer shall be liable to pay) at the appropriate prevailing rate. The Buyer is solely responsible for all customs duties, import duties or similar duties and taxes.
3.3     Xiros shall be entitled to submit an invoice to the Buyer at any time on or after the Goods leave the premises of Xiros or are otherwise despatched.
3.4    The Buyer shall pay Xiros’ invoice in full within twenty (20) Business Days of the date of the invoice in full and in cleared funds in pounds sterling, by electronic transfer to the bank account nominated in writing by Xiros from time to time.
3.5     Notwithstanding the provisions of clauses 3.3 and 3.4 Xiros reserves the right (in Xiros’ absolute discretion) to require payment in full for the Goods at any time or otherwise to change or rescind any credit facility from time to time given to the Buyer.
3.6     Without prejudice to any other right or remedy that it may have, if the Buyer fails to pay Xiros on the due date, the Buyer shall pay interest on the over due amount at the rate of three per cent (3%) per annum above the base lending rate of Lloyds Bank plc from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether after or before judgment.
3.7     The Buyer shall not be entitled to withhold, set off or reduce any amounts it owes to Xiros against any amounts Xiros owes to the Buyer. Xiros may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by Xiros to the Buyer.
3.8      If the Buyer disputes the payment of any invoice or a part of it, the Buyer shall:
3.8.1 notify Xiros of the disputed amount on or before the due date for payment of the invoice in which such disputed amount is included giving reasonable details of the dispute; and
3.8.2 pay the amount of the invoice not in dispute in accordance with clause 3.4.
4.       Title and Risk
4.1     The risk of damage to or loss of the Goods shall pass to the Buyer on completion of Delivery, or where the Goods are being delivered outside the United Kingdom, in accordance with the relevant Incoterm, as indicated in clause 6 below.
4.2      Ownership of the Goods shall not pass to the Buyer until Xiros has received payment of all sums due in full for the Goods and any other goods or services that Xiros has supplied to the Buyer in respect of which payment has become due.
4.3       Until title to the Goods has passed to the Buyer, the Buyer shall:
4.3.1 hold the Goods on a fiduciary basis as Xiros’ bailee;
4.3.2 store the Goods (at no cost to Xiros) separately from all other goods held by the Buyer so that they remain readily identifiable as Xiros’ property;
4.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
4.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of Delivery; and
4.3.5 give Xiros such information relating to the Goods as Xiros may require from time to time.
5.         Cancellation of Order
5.1       Subject to clause 5.2, the Buyer may cancel an Order by providing Xiros with written notice up to twenty four (24) hours’ before the time that the Goods are scheduled to leave Xiros’ premises. The Buyer shall be liable to compensate Xiros for costs (including without limitation any loss of profit) incurred prior to receipt by Xiros of notice of such cancellation. Xiros may issue an invoice for such costs at any time after such notice of cancellation has been received.
5.2        The Buyer’s right to cancel an Order shall be entirely at the discretion of Xiros. The Buyer shall be liable for payment of an Order unless it receives written confirmation from Xiros that the Order has been cancelled.
6.          Delivery
6.1        Where Xiros agrees or states a specified delivery date, Xiros shall use reasonable endeavours to deliver the Goods on or before the relevant date (“Delivery”).
6.2         Any dates quoted for Delivery are approximate only and the time of Delivery shall not be of the essence. Xiros shall not be liable for any direct, indirect or consequential loss howsoever caused (including negligence) by any delay in Delivery.
6.3         Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location. The Buyer will provide at its expense adequate and appropriate equipment and manual labour for off-loading the Goods at the Delivery Location.
6.4         Where the Buyer is not situated in England, Scotland or Wales Xiros shall be responsible for making the Goods available in accordance with Incoterms, the specific Incoterms rule to be decided prior to shipment of the Goods and stated by Xiros on the Order Acknowledgement.
6.5        Xiros reserves the right not to deliver the Goods to a country other than that in which the Buyer is established.
6.6       The Buyer shall be responsible for complying with any legislation or regulations governing the importation of Goods into the country of destination and for the payment of any duties on them.
6.7        Xiros shall be entitled to deliver the Goods by instalments. Each instalment shall be treated as if it constituted a separate and distinct contract between Xiros and the Buyer.
6.8        Any failure, suspension or delay by Xiros in respect of any part-delivery of the Goods or the discovery of any defect in any of the Goods so delivered shall not entitle the Buyer to cancel the remainder of that or any other Contract and shall not affect the obligations of the Buyer in respect of the remainder of the Goods or the remainder of that or any other Contract.
6.9        At the point of Delivery of the Goods, the Buyer shall carry out a thorough and detailed inspection of the Goods, including an inspection of the Goods not immediately visible for any defect, shortage, damage or loss. The Buyer shall notify Xiros upon Delivery if the quantity of Goods is not in accordance with the Order or if any of the Goods are damaged. The Buyer will be required to sign a delivery notice indicating that it has inspected and accepts the Goods, after which Xiros shall not be obliged to provide any return, refund or replacement Goods to the Buyer. Xiros shall not be liable in any way for any damage to Goods or missing Goods following signature by the Buyer of the delivery note for such Goods.
6.10      If, following inspection of the Goods at the point of Delivery, the Buyer believes that certain Goods have not been Delivered or that all or any of the Goods are damaged, it shall provide Xiros with written notification and any relevant documents within forty eight (48) hours of the date of Delivery. Failure to do so shall amount to the Buyer’s deemed acceptance of the Goods.
6.11     If the Buyer notifies Xiros that the Good are damaged in accordance with clause 6.10, Xiros’ liability to the Buyer shall be limited to the costs of the damaged Goods.
7.        Sale and Return
7.1      Where Xiros makes a sale of the Goods in a Contract which is on a “sale or return” basis, the following provisions shall apply:
7.1.1 a Contract shall only be on a “sale or return” basis where Xiros clearly states that the same to be the case in the relevant Order Acknowledgment; and
7.1.2 where pursuant to such a Contract the Goods to be returned are not ready for collection in accordance with the arrangements made by Xiros for their collection, the Buyer shall be responsible for any costs directly or indirectly incurred by Xiros as a result.
8.           Force Majeure
8.1        Subject to due compliance with clause 8.2, neither party shall be liable for any failure to perform or delay in performing any of its obligations to the other party (other than an obligation to pay monies) attributable to any Force Majeure Event and no such failure or delay shall be deemed for any purpose to constitute a breach of contract.
8.2        In the event of either party being delayed or prevented from performing its obligations due to a Force Majeure Event such party shall:
8.2.1 give notice of such delay or prevention to the other party as soon as reasonably practical stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration;
8.2.2 use its reasonable endeavours to mitigate the effects of such delay or prevention upon the performance of its obligations under these Conditions; and
8.2.3 resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
9.         Suspension and Termination
9.1       Xiros may terminate the Contract or cancel or suspend all further deliveries under the Contract or under any other contract between the Buyer and Xiros without incurring any liability to the Buyer, and all outstanding sums in respect of Goods Delivered to the Buyer shall become immediately due and, in respect of the Goods supplied but for which no invoice has been submitted, Xiros may submit an invoice, which shall be payable immediately on receipt if:
9.1.1 the Buyer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within a period of ten (10) Business Days after receipt of notice in writing requiring it to do so; or
9.1.2 the Buyer stops trading or is in a position whereby it cannot pay its debts and/or an Insolvency Event arises; or
9.1.3 Xiros reasonably believes that one of the circumstances under clause 9.1.2 is about to occur; or
9.1.4 Xiros is unable to perform its obligations under the Contract, including Delivering the Goods, as a result of Force Majeure Event; or
9.1.5 the costs of Delivering the Goods significantly increases for reasons out of Xiros’ control.
9.2      Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10.       Quality
10.1     Xiros’ shall ensure that when the Goods are Delivered they are substantially in accordance with the Specification.  If the Specification has not previously been supplied to the Buyer or is not available on Xiros’ website, Xiros will supply the Specification to the Buyer on request.
10.2     Xiros guarantees that the Goods when Delivered are substantially in accordance with the Specification save that where the supplier of a component used in the Goods provides a lesser guarantee, then Xiros’ will provide details of any such guarantee on written request from the Buyer and in respect of that component, use its reasonable endeavours to pass on that lesser guarantee to the Buyer.
10.3     Xiros shall not be liable for any use of the Goods by the Buyer (or any third party) outside the use for which the Specification was originally written.
10.4     Any and all samples supplied by Xiros are supplied for information only.
11.       Limitation of liability
11.1     This clause 11 sets out Xiros’ entire financial liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Buyer in respect of:
11.1.1    a breach of Xiros’ contractual obligations under these Conditions;
11.1.2    a tortious act or omission for which Xiros is liable; and
11.1.3    an action arising out of a misrepresentation made by or on behalf of Xiros,
arising in connection with the performance or contemplated performance of these Conditions or out of an act done or omission made as a consequence of the entry into by Xiros of these Conditions.
11.2     Save as expressly provided in these Conditions or in any individual Contract, all terms, conditions and warranties implied by statute, common law or otherwise howsoever arising are excluded to the fullest extent permitted by law.
11.3     Nothing in these Conditions shall exclude or limit Xiros’ liability for:
11.3.1    death or personal injury caused by negligence;
11.3.2    fraud or fraudulent misrepresentation; or
11.3.3    any matter in respect of which it would be unlawful for Xiros to exclude or restrict liability.
11.4      Subject to clause 11.3 and 11.6, the total liability which Xiros shall owe to the Buyer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall, in respect of all claims (connected or unconnected) in all circumstances be limited to an amount equal to the revenue received by Xiros under the terms of this Contract during the twelve month period preceeding the date of the claim.
11.5      Xiros shall have no liability in respect of any claim it receives more than six (6) months following Delivery of the Goods in respect of which the claim is made
11.6      Subject to clause 11.3, Xiros shall in no circumstances be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any pure economic loss, loss of profit, loss of business, loss of goodwill or any indirect or consequential loss howsoever caused arising under or in connection with the Contract and/or the Goods.
11.7      The Buyer agrees to take all steps necessary to mitigate any losses, costs, expenses, claims and demands that it may seek to claim from Xiros under or in connection with these Conditions.
11.8      The Buyer acknowledges that the above provisions of this clause 11 are reasonable and reflected in the Price which would be higher without those provisions, and the Buyer will accept such risk accordingly.
12.         Intellectual Property
12.1       The supply of any of the Goods by Xiros shall not give the Buyer any rights whatsoever in respect of any Intellectual Property Rights owned, used or enjoyed by Xiros in connection with the Goods, except the right to use the Goods in accordance with their normal use and within the use envisaged by the Specification.
13.         Assignment
13.1       The Buyer shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Xiros. Xiros may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Conditions or a Contract.
14.         Notices
14.1       Any notices must be in writing and may be delivered by hand, first class post, Special Delivery post or fax, addressed to the recipient at its registered office or to any other address, or fax number as notified in writing to the sender by the other party.
14.2       Any notice will be deemed to have been duly served if delivered by hand, on delivery if sent by post, on the second Business Day after it was posted or if sent by facsimile process, when correctly despatched provided that, if in any case notice would be deemed to be given outside of 9am to 5.30pm on a Business Day, such notice shall instead be deemed to have been given at the start of the next Business Day.
15.         Waiver
15.1       No failure to exercise or delay in exercising any right or remedy provided under the Contract or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy. No single or partial exercise of any right or remedy under the Contract shall prevent or restrict the further exercise of that or any other right or remedy.
16.        Confidentiality
16.1      The Buyer shall keep confidential any Confidential Information that it may acquire and shall not use the Confidential Information for any purpose other than to perform its obligations under the Contract and will ensure that its officers and employees comply with the provisions of this clause 16.
17.        Severability
17.1      If a provision in this Contract is determined by a Court or tribunal of a competent jurisdiction to be wholly or partly unenforceable for any reason (i) such unenforceability shall not affect the rest of this Contract; and (ii) the parties shall in good faith amend and if necessary novate the Contract to reflect as near as may be the spirit and intention behind such unenforceable provision or provisions so that the same comply with the laws of that jurisdiction.
18.       Status
18.1     Nothing in these Conditions shall create any joint venture, agency or partnership between Xiros and the Buyer.
19.        Variations
19.1      Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Xiros.
20.       Entire Agreement
20.1     The Contract constitutes the whole agreement and understanding of the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of the Contract. Each party acknowledges that it has not relied upon any warranty, representation, statement or understanding other than those expressly set out in the Contract.
21.       Third Party Rights
21.1     A person who is not a party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Contract.
22.      Governing Law and Jurisdiction
22.1    Every Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with the laws of England and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.